Suzanne Ainslie v. Citizens Telecommunications Company of California, Inc. , 385 F. App'x 638 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUZANNE M. AINSLIE; et al., No. 09-15847
Plaintiffs - Appellants, D.C. No. 2:05-cv-02649-GEB-
and EFB
BENJAMIN G. GARCIA; et al.,
MEMORANDUM *
Plaintiffs,
v.
CITIZENS TELECOMMUNICATIONS
COMPANY OF CALIFORNIA, INC.; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
09-15847
Two individuals formerly employed as fire lookouts, and members of their
families, appeal pro se from the district court’s judgment in their action claiming
that defendants caused them to be exposed to electromagnetic radiation in excess
of federally-permissible limits and thereby violated 47 U.S.C. § 206 and California
state law. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Proctor v. Vishay Intertechnology, Inc., 584 F.3d 1208, 1218 (9th Cir. 2009). We
affirm.
The district court dismissed the plaintiffs’ claim of strict liability based on
ultrahazardous activity. By failing to raise any arguments in their opening brief
addressing the district court’s ruling on this claim, the plaintiffs waived this
challenge. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
The district court properly granted summary judgment on the claims of
negligence per se and violation of 47 U.S.C. § 206. Those claims were litigated
and decided in an earlier state court action brought by some of the plaintiffs here
(with whom the remainder are in privity). See Jasso v. Cal. Dep’t of Forestry,
Superior Court of California, County of Lassen No. 41697; see also First Nat’l
Bank v. Russell (In re Russell), 76 F.3d 242, 244-45 (9th Cir. 1996) (describing the
elements of collateral estoppel under California law to be: (1) the issue decided in
the earlier case is identical to the issue presented, (2) the earlier case culminated in
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a final judgment on the merits, and (3) the party against whom estoppel is asserted
was a party to, or was in privity with a party to, the earlier case).
AFFIRMED.
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